Utah recognition of same-sex marriage in judge's hands

Plaintiffs, activists and equality supporters rally at the Utah State Capitol to show support for Judge Robert Shelby’s Dec. 20th ruling on Amendment 3 in Salt Lake City Friday, Jan. 10, 2014. (Jeffrey D. Allred, Deseret News Archives)

SALT LAKE CITY — Four same-sex couples who married in Utah during the brief time it was legal argued in federal court Wednesday that the state is disrupting their lives because it doesn't recognize their unions.

But attorneys for the state say the decision by the U.S. Supreme Court to stay marriages in Utah means the state can't legally recognize the couples as married.

Lawyers for the couples told U.S. District Judge Dale Kimball the state's move to undo the marriages deprives them of rights, strips them of dignity and leaves them humiliated.

"The fact is these people are legally married," attorney Erik Strindberg said.

Assistant attorney general Joni Jones said the state is not trying to void the marriages but is withholding recognition until after the Amendment 3 case is decided.

But Jones said the unions would be void if Judge Robert J. Shelby's ruling that allowed same-sex marriage in Utah is overturned because it would be based on an "erroneous" law.

"There's no question this is an emotional issue. But the state is constantly trying to take a position to respect their rights and respect the legal process," she said.

The American Civil Liberties Union and the couples' lawyers want Kimball to order the state to immediately recognize the marriages. The judge took the arguments under advisement but did not say when he would rule.

In December, Shelby struck down Utah's voter-approved constitutional amendment defining marriage as between a man and a woman. More than 1,000 couples married during a 17-day period in December and January before the U.S. Supreme Court stayed the ruling.

The 10th Circuit Court of Appeals now has the case, but it could work its way to the Supreme Court in the next couple of years.

Married couples Donald Johnson and Carl Fritz Shultz, Matthew Barraza and Tony Milner, JoNell Evans and Stacia Ireland, and Elenor Heyborne and Marina Gomberg sued the state in January to have their marriages recognized.

Being in legal limbo has put Milner's adoption of the son he and Barazza have on hold. Evans and Ireland, who has heart problems, fear a hospital won't treat them the same as married couples making health care decisions.

"We have waited long enough. We are ready to have our marriages reinstated," Evans said after the hearing.

Strindberg said the Amendment 3 case has nothing to do with this case, and waiting on the case basically voids same-sex marriages performed in Utah.

"You can't sort of take it away but not really. These people either have the rights associated with marriage or they don't have any rights. There is no in-between," he said.

Parker Douglas, the attorney general's chief of staff and general counsel, acknowledged that issue has impacted same-sex couples who married in Utah.

"I think it would be callous and I don't think anybody in the state with any conscience would say people aren't personally affected and haven't been personally affected by this," he said. "If I controlled everything, and obviously I don't, there wouldn't have been a stay where people would have been left in limbo."

But Douglas said because of the Supreme Court stay, it is currently illegal to recognize same-sex marriages.

In court, Jones argued that the rights of couples who married in Utah are not irrevocable because the same-sex marriage question hasn't been settled.

ACLU attorney Josh Block contends the couples have vested rights that can't be taken away because same-sex marriage was legal when the ceremonies were performed. He said the law must explicitly state that a specific right could be taken away retroactively.

Assistant attorney general Kyle Kaiser said same-sex couples should have known going in that Shelby's ruling was not final and would be appealed. The case isn't about marriage, he said, but about reliance on a marriage license that was issued based on a federal court order.

Strindberg called that argument "ridiculous" after the hearing. The law at the time allowed them to get married, he said.